Riverside Hosp., Inc. v. Garza, 13-94-041-CV

• Decision Date: 28 February 1995
• Docket Number: No. 13-94-041-CV,13-94-041-CV
• Citation: 894 S.W.2d 850
• Parties: RIVERSIDE HOSPITAL, INC. d/b/a A.M.I. Riverside Hospital and American Medical International, Inc., Relator, v. The Honorable Margarito GARZA, Judge of the 148th Judicial District Court, Nueces County, Texas, Respondent.
• Court: Texas Court of Appeals

Page 850

894 S.W.2d 850

RIVERSIDE HOSPITAL, INC. d/b/a A.M.I. Riverside Hospital and American Medical International, Inc., Relator, v. The Honorable Margarito GARZA, Judge of the 148th Judicial District Court, Nueces County, Texas, Respondent.

No. 13-94-041-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 28, 1995.

Thomas F. Nye, Linda C. Breck, Brin & Brin, Corpus Christi, Bruce E. Anderson, Brin & Brin, San Antonio, for Relator.

Rene Rodriguez, Corpus Christi, for Real Party in Interest.

Before SEERDEN, C.J., and DORSEY and HINOJOSA, JJ.

OPINION

SEERDEN, Chief Justice.

This is a mandamus case. Relator contends the trial judge abused his discretion by ordering it to provide hospital records pursuant to requests for production made by Delma Vasquez, the Real Party in Interest. Relator objected to the production on the basis of privilege. After a hearing on a motion to compel, the trial court ordered Relator to produce the documents for in-camera inspection. After reviewing the documents and finding some privileged and some not, the court ordered them all to be subject to discovery.

On original submission, we determined that at the hearing on the motion to compel, there was a misunderstanding between the parties concerning the nature of the stipulation as it related to whether the documents were privileged. In the interest of justice, we abated the proceeding and ordered the trial court to hold a hearing to allow Relator an opportunity to present proof of the privilege to the court.

In compliance with this Court's order, the trial court held a hearing on Relator's claim of privilege. In addition to the documents themselves, which were submitted in camera, Relator filed with the trial court two affidavits to support its claim of privilege. One was from Mary Monte, the Administrative Assistant/Medical Staff Coordinator at Riverside Hospital. The other was from Dr. Ralph Palumbo, M.D., Chief of Staff at Riverside Hospital. Vasquez submitted no additional evidence.

After this hearing, the trial court again ordered Relator to produce full and complete responses to Vasquez's Requests for Production. The case is now before this Court for reconsideration.

Respondent contends that Relator waived any privilege because the documents which respondent requested were documents that had previously been disclosed in a suit styled Alejandro R. Rocha, et. al. v. Elliot F. Monroe, M.D., and Riverside Hospital, Inc. et al. In that case, the Rochas filed a motion to compel Riverside Hospital to produce various documents relating to their lawsuit against the named defendants. At the hearing on such motion, Riverside objected to the production of the documents on the grounds that the requested items were privileged. The trial court allowed the parties to confer on the privilege issue. Afterwards, Riverside's counsel informed the trial court that "the staff files and the credentialing of Dr. Monroe ... were turned over to Mr. Patterson [the Rochas' counsel] this morning." Counsel for Riverside also stated that the remainder of the items that the Rochas requested in their Requests for Production Nos. 2, 3, 4, 5, 9, 15, 16, and 17 were generated by the hospital committees and, therefore, privileged. The trial court granted the Rochas' motion to compel in its entirety. Pursuant to the court's order, relator delivered all the documents to the attorneys in the Rocha suit.

ARE THE REQUESTED DOCUMENTS PRIVILEGED?

The party asserting privilege has the burden of proof to establish the existence of the privilege. Giffin v. Smith, 688 S.W.2d 112, 114 (Tex.1985) (orig. proceeding). If the matter for which a privilege is sought has been disclosed to a third party, thus raising the question of waiver of the privilege, the party claiming the privilege has the burden of proving that no waiver has occurred. Jordan v. Court Of Appeals For The Fourth Supreme Judicial Dist., 701 S.W.2d 644, 649 (Tex.1985) (orig. proceeding). In this mandamus, we hold that Relator had the burden to prove that the requested documents are privileged and that it did not waive the privilege.

The statutes creating privileges relevant to health-care providers pertain to the proceedings of two types of committees called "medical committees," found in sections 161.031-32 of the Texas Health & Safety Code, and "medical peer review committees," found in article 4495b of the Texas Revised Civil Statutes. Section 161.032 provides that records and proceedings of a medical committee are confidential and are not subject to court subpoena. However, the statute specifically exempts records made or maintained in the regular course of business by a hospital, health maintenance organization, or extended health-care facility. Article 4495b deals specifically with peer-review committees and protects all communications, proceedings, and records of a medical peer review committee from subpoena or discovery in an action. Thus, no records are exempted from the privilege because they are maintained in the regular course of business.

Mary Monte, Riverside's Administrative Assistant/Medical Staff Coordinator, stated in her affidavit that she was the person at Riverside who had responsibility for the maintenance and security of all documents, records, and proceedings relating to medical-staff credentialing, re-credentialing, and peer review. She further stated that Riverside was a health-care entity; i.e., a hospital licensed pursuant to Chapter 241, Texas Health & Safety Code. Dr. Palumbo, Riverside's Chief of Staff, stated in his affidavit that he took part in the creation, review, and utilization of many of the documents at issue.

According to Monte and Dr. Palumbo, Envelope A contains documents generated by Riverside's credentialing committee, as well as documents submitted to that committee. Envelope B contains minutes of meetings of Riverside's Executive Committee and O.B. Committee. Envelope C contains reports of staff concerns, incident reports, and summaries concerning Dr. Monroe. Riverside's employees or members of its medical staff prepared the documents in Envelope C for submission to a Medical Peer Review Committee. Monte and Dr. Palumbo further declared that the O.B., Executive, and peer-review committees operated pursuant to written by-laws which Riverside's governing board had approved. Envelope E contains correspondence and documents relating to the Texas State Board of Medical Examiners' investigation of Dr. Monroe. All of these records are communications made to a hospital-medical-peer-review committee, or by the hospital-medical-peer-review committee or other authorized representative of Riverside to the Board of Medical Examiners.

THE MEDICAL-COMMITTEE

PRIVILEGE

In McAllen Methodist Hosp. v. Ramirez, ¹ we stated that the statutory purpose behind a privilege for hospital-committee records and proceedings was to protect the important, but limited, policy of encouraging uninhibited discussion of events that were the focus of committee action or review. Ramirez, 855 S.W.2d at 197. In Jordan, the supreme court defined the terms "records and proceedings" under the privilege set forth in section 161.032 of the Texas Health & Safety Code to mean those documents generated by the committee in order to conduct an open and thorough review. Jordan 701 S.W.2d at 648. The Jordan Court stated, in relevant part, that:

In general, the privilege extends to documents that have been prepared by or at the direction of the committee for committee purposes. Documents which are gratuitously submitted to a committee or which have been created without committee impetus and purpose are not protected. In addition, the privilege extends to minutes of committee meetings, correspondence between committee members relating to the deliberation process and any final committee product, such as recommendations.

Jordan, 701 S.W.2d at 648.

The privilege does not extend to routine accumulative information despite the fact that these documents may eventually serve as evidence in committee deliberations. Barnes v. Whittington, 751 S.W.2d 493, 496 (Tex.1988) (orig. proceeding); Ramirez, 855 S.W.2d at 198. In Barnes, the court concluded that letters requesting information on credentials and experience of two doctors were routine administrative records prepared by the hospital in the ordinary course of business. The court also determined that documents which listed letters mailed and received by the hospital during the application phase were not privileged. A letter from an insurance company also constituted a gratuitously submitted document and was discoverable.

We find that the trial court erred in refusing to grant protection of certain items based on the supreme court's holdings in Barnes and Jordan. The documents which are privileged are minutes of the Executive Committee, O.B. Committee, and the Pediatric Committee. See Jordan, 701 S.W.2d at 648; Ramirez, 855 S.W.2d at 198. The medical-committee privilege would not protect many of the other documents in this original proceeding due to the Barnes decision.

THE MEDICAL-PEER-REVIEW

COMMITTEE PRIVILEGE

Article 4495b of the Texas Revised Civil Statutes applies to the records and communications of a medical-peer-review committee. See e.g. TEX.REV.CIV.STAT.ANN. art. 4495b, § 5.06 (Vernon Pamph.1994). When deciding whether this privilege protects the information which Riverside submitted in-camera, we must keep in mind that any claim of privilege is balanced with a party's right to obtain evidence. The law does not favor privileges.

The dispositive issues for us to address are 1) whether Riverside's committees met the requirements of a peer-review committee as defined in article 4495b, and 2) if so, what documents relating to what activities of the committees are privileged under article 4495b.

Article 4495b, section 1.03(a)(6) defines a medical-peer-review committee:

"Medical peer review committee" or "professional review body" means a...